The FPP Test How and why it applies to pilots

1. The FPP TestHow and why it applies to pilots “Winging It” – Student Pilot Conference NMIT July 2011

2. Overview • The FPP test as a general concept • The FPP test in the civil aviation context • How it applies to pilots as new entrants • Continuing FPP obligations of licensed pilots www.amclegal.co.nz

3. FPP test – general concept • What is it? • Mechanism to assess a person’s fitness or suitability to carry out a certain activity or occupation • How is it applied? • By reference to a set of personal characteristics or standards of expected behaviour and conduct • Tailored to the nature of the activity or occupation • Purpose? • To protect and promote the public interest • Applies to wide range of professions and activities www.amclegal.co.nz

4. FPP in the aviation context • Why does it apply to aviation participants? • To protect and promote • the public interest in aviation safety • the interests of participants in the aviation system • How is this achieved? • By requiring participants who hold or exercise control over an aviation document to satisfy the FPP test (s9 CA Act) • By enforcing appropriate sanctions where participants do not satisfy the FPP test (s17-20 CA Act) • Who decides? • The Director of Civil Aviation, the Courts www.amclegal.co.nz

5. Civil Aviation Act • Section 10: The Mandatory FPP criteria • The Director must: • Have regard to the degree and nature of a person’s proposed involvement in the civil aviation system; and • Consider the person’s: • Compliance history with transport safety regulations • Related transport industry experience • Knowledge of civil aviation regulatory requirements • Physical, mental health or serious behavioural issues • Convictions for transport safety offences; and • Any evidence that a transport safety offence or breach of the Civil Aviation Rules has been committed www.amclegal.co.nz

6. s10 - Other relevant matters • S10(2) and (3) The Director may: • Take into account any other matter or evidence considered relevant • Seek and receive, and consider, any information obtained from any source • Other relevant information may include: • Other criminal convictions • Testimonials, references from industry • Adverse information from industry • The weight to be given to any relevant matter, and the final FPP decision, are at the discretion of the Director www.amclegal.co.nz

7. Section 11: Proposed adverse decisions • The Director must: • disclose any adverse information taken into account, and allow the person a reasonable opportunity to refute or comment on it; and • Notify any adverse decision in accordance with s11; and • After considering any response, notify the final decision and, if it is adverse, explain the consequences • Section 66: Appeal to the Courts • Adverse FPP decisions and decisions affecting the validity or exercise of the privileges of an aviation document may be appealed to the District Court www.amclegal.co.nz

8. FPP test applied to new pilots • Every case must be assessed on its own merits and will depend on individual applicants circumstances • However a typical profile for a young student pilot applying for a PPL or CPL will be: • Knowledge of civil aviation regulations – demonstrated to the required standard for the applicable licence • Civil aviation flying experience – at or slightly above minimum required hours • Has drivers licence • Little or no other transport sector (commercial) experience • No serious physical, mental health or behavioural concerns www.amclegal.co.nz

9. In such cases the FPP issues the Director will focus on under s10 are: • Any convictions for transport safety offences • Any history of land transport infringement offences • Any other convictions that may be of relevance • Why? • No (or very limited) aviation or other commercial transport “track record” that the Director can draw on • Land transport safety record – Director can draw inferences as to likely attitude to aviation safety, and future compliance with civil aviation safety regulations www.amclegal.co.nz

10. Land transport infringement offences • One or two - unlikely to be significant concern • On-going history - will be viewed seriously and scrutinised • Land Transport convictions • Will be assessed in light of all of the other FPP criteria • More than one conviction, and/or combination of convictions and infringements – viewed seriously, increases level of scrutiny of applicant • Other convictions • Must be relevant to the licence being sought- eg drugs • Combination with any transport safety offences will increase seriousness and scrutiny www.amclegal.co.nz

11. Other factors that may be relevant to adverse history • Length of time since or between offence(s) • Particular circumstances/seriousness of offence(s) • Character references and testimonials – esp industry • Whether restrictions or conditions could address any safety concerns • Points to Note • No statutory presumption that a conviction = not fit and proper • No minimum ‘conviction free period’ applies • Must be assessed on a case by case basis and with regard to intended role in the system www.amclegal.co.nz

12. Ongoing FPP obligations • Participants must remain fit and proper to exercise the privileges of any aviation document held (s9(3) CA Act) • Criteria in s10 continue to apply • Failure to disclose relevant FPP information is an offence under the Act – s49(1)(c). Relevant information includes: • Adverse information about any of the matters in s10(1), including land transport convictions • Failure to disclose relevant information may itself lead to an adverse FPP determination: • New Zealand Law Society v Mitchell [2011] NZAR 81 • Lawyer struck off for failing to disclose 39 convictions • Court of Appeal noted he may have met the FPP standard if the convictions had been disclosed www.amclegal.co.nz

13. Aviation experience • Experience and track record in aviation industry will be increasingly relevant and carry more weight over time • Compliance with s12 CA Act relevant to FPP status– • Obligation on participants to comply with the Act, Rules and conditions on aviation documents (s12(2)); and • To exercise the privileges of aviation documents safely and in accordance with prescribed safety standards (s12(3)) • Re Taylor and Department of Transport (1978) 1 ALD 312 Administrative Appeals Tribunal of Australia posed the test in relation to assessing whether a commercial pilot remains fit and proper as follows: • “it is not simply a question of competence to fly an aircraft… [it requires] a consideration of the [participant’s] conduct measured against the responsibilities, functions and duties of the holder of a commercial pilot licence as they emerge from the provisions of the Air Navigation Regulations … it is clear that [those duties] include observing the interests of the safety of air navigation – not only in the interests of pilots, passengers and the owners of aircraft, but also the interests of the public at large” www.amclegal.co.nz

14. Daddow and Civil Aviation Safety Authority [2010] AATA 795(Administrative Appeals Tribunal of Australia) • Cancellation of PPL, Student Pilot Licence and Flight Radiotelephone Licence by CASA in June 2009 affirmed • Not fit and proper to have responsibilities and perform functions and duties of those flight crew licences • History • PPL since December 1986; since flown 950 hours as PIC, owner of Cessna P210N single engine 6 seater aircraft • 3 incidents between January and December 2007 • February 2008 – attempted aborted landing down wind, struck tree and sustained damage to aircraft on go-around • March 2008 – CASA suspended PPL over competency and knowledge concerns, required him to sit examination. Allowed to undertake flying training with flight instructor www.amclegal.co.nz

15. Failed the theory component in December 2008. The flight component of the examination did not proceed. • Notified that CASA considering cancellation of licences and asked to ‘show cause’ • After a meeting with CASA in February 2009, permitted to continue to fly as a student pilot to undertake remedial training with flight instructor • 19 flights between December 2008 and 27 April 2009, of which: • 17 were solo flights conducted without required authorisation • On 25 April 2009 he was accompanied by a female friend and her granddaughter (not permitted under Student Pilot Licence) • On that flight he attempted a downwind landing, less than 285 metres from a lake at the end of the runway, at excessive speed. The aircraft stopped less than 1 metre from the airport boundary. • Notified again to ‘show cause’ • Prosecuted for breaches of Civil Aviation Regulations in relation to 25 April 2009 flight. Discharged without conviction. • Flight Crew Licences cancelled on 30 June 2009. www.amclegal.co.nz

16. Administrative Appeals Tribunal was “well satisfied” he was not fit and proper to have the responsibilities and exercise the functions and duties of his Flight Crew Licences, on the following grounds: • Despite intervention, he continued to show poor grasp of the theoretical aspects of flying, and a lack of necessary skills to fly even as a student pilot • Carriage of passengers on the flight on 25 April 2009 was clearly in breach of the rules, and the landing endangered himself and his passengers • This incident demonstrated he had not learned from his previous failings, or the similar landing incident in February 2008 • His explanation that he thought he could fly solo as a student pilot lacked merit; and • Even if correct, it showed a reckless disregard for the need to be familiar with the regulations. www.amclegal.co.nz

17. Questions? • Other sources of information: • www.amclegal.co.nz – articles on FPP issues as published in NZ Aviation News • www.caa.govt.nz – search under “F” for fit and proper persons • Your employer • CAA Personnel Licensing Unit www.amclegal.co.nz